A previous post on Texas death penalty appointments [here] had linked to an Austin newspaper expose Sunday detailing incompetent state habeas/appellate representation of capital defendants. The next part of this "Writs gone wrong" series included this story on how hard it is for even the very good current lawyers in such appeals to do a good job when the cases are so old and the files not easily navigated. They are stuck with a lot of errors not of their making. Further, the 'How Appealing' blog, at here, includes helpful links to the rest of this important series, and it lists other topics covered. It also, in unrelated Texas ethics news, quotes and links elsewhere in the blog an op-ed from the Fort Worth paper that begins, "The ruling exonerating Texas Supreme Court Justice
Nathan Hecht of ethical violations gives new definition to the word
tortuous." [Alan Childress]

A follow-up on the two SSRN articles on law clerk influence, which we discussed and linked at this spot. Now David R. Stras (Minnesota, Law) has posted this Review Essay on SSRN, "The Supreme Court's Gatekeepers: The Role of Law Clerks in the Certiorari Process." It reviews two books on the role and impact of Supreme Court law clerks, including one by a Zorn-less Todd Peppers (whose paper with Zorn we cited). Stras goes beyond mere "book review" and independently examines cert pools for various years -- and suggests clerks do influence certiorari decisions. Abstract after the jump. [Alan Childress]

Aproposner* my previous post on urban legends of the legal profession and alleged frivolous litigation (all with whopping jury awards) that turned out to be fake: Such whoppers always unfairly invoke the name of Stella Liebeck (as in your next email, "This years Stella Awards Winner played w/ fourty live cobras and got fatelly bit and then sued Harrison Ford!--and won!!). You know Stella: she settled a case against McDonald's for her horrific burns from their jet-fuel coffee [my term]. She is real and her case was too--though not how it was publicly reported at the time and used since then by corporate propagandists. I guess if she sued them, after, for their libeling her and questioning her integrity, using provably false facts about the case, that'd be a frivolous lawsuit too and another example of her greedy get-rich scheming. (She just wanted to repay her daughter the medical costs.)

Regardless, it is a fitting case to use as propaganda in a different direction: jurors are not stupid and the legal profession did not wrongly manipulate them into forking over millions of Micky D's precious Best Buy Bucks to the 79-year-old Stella. Post-case interviews with the actual jurors (and reports from the judge who sat the case) show a thoughtful and initially-skeptical jury looking at all the facts and making the call as they saw fit on the evidence. Their views on the case are part of a website collecting debunking reports of this case, linked here. Its best part, to me, is a little ways down (the third entry) under a heading Coffee Spill Cases: it's a file used apparently for teaching this and other cases by Ralph Brill at Chicago-Kent, which includes a specific excerpt from Richard Wright on the jury interviews and how the case was presented by Reed Morgan for the plaintiff (under subheading PUBLIC PERCEPTIONS AND EMPIRICAL DATA). It is worth a read if only to have some contrafacts handy if you are in the legal profession and your layfriends keep using the travesty against McDonald's to try to make you feel bad you're a lawyer, when you have so many better reasons to feel bad.

Why Stella? How did her little case get such traction? Certainly not by her bragging to her friends that she scored thousands of dollars off of Ronald at the mere sacrifice of her genitals (I am blunt for a reason--people need to see her injuries for what they were, not a social snub, hurt feelings, or a day at the ER mooning George Clooney). I think part of it is that McD's is such a positive institution in America and an ambassador to the world of U.S. culture. I am not kidding, and I honestly think that's a good thing. And to be fair, the people using this case are not from McDonald's, which settled it privately. But I doubt the media impact of this 'cautionary tale of the legal profession' would have earned much traction if the careless or at least insensitive injurer had been a mortician or Allstate. The defendant in such a case would be excoriated and the jury praised. The plaintiff would not be a poster child, yet the defendant might well be (as for example the funeral home in Georgia that piled bodies out back rather than cremate them as promised the families--just how hard was it to fulfill the promise?). And in any event the legal profession would not be put on public trial so readily. A bit more after the jump.

________

* "Aproposner my earlier point" is from the French for "appropriate to, and further recycling of, my earlier tome..."

As a follow up to Alan's post on the most obvious disciplinary result, my nomination is a case that I prosecuted at D.C. Bar Counsel. In re Bewig, 791 A.2d 908 (D.C. 2002) asks the question whether repeated sexual abuse of a three year old child in the lawyer's care and custody is a crime of moral turpitude. The answer is "yes" but the most interesting aspect of the case was the D.C. Board on Professional Responsibility's report that reads like a love letter to the lawyer and encourages him to seek reinstatement (there is no permanent disbarment in the District of Columbia). Even more remarkable is the dissent of one member, who thought that predatory sexual abuse was a curable disability that justified probation in lieu of disbarment. These reports are available at www.dcbar.org, click on site map, then attorney discipline, then Board report and recomendations, enter keyword Bewig.

An Illinois state ALJ, in a Chicago-area case about alleged "locksmith fraud," said Monday he had to declare a mistrial because of the "personal attacks you've [the lawyer] made on my character, the so-called impairment." The Judge's department later offered that the Judge had, in the questioned earlier proceeding on Friday, been "groggy" from taking "some cold medicine." [This is of course the classic Stripes defense of the cab driver played by Chicago's own Bill Murray.] Whatever the grogginess and lack of focus in court that day and its putative source in some kind of generic NyQuil, the Judge's bigger problem--I am just guessing it will be--is that at recess he told a reporter, it is reported, that one of the locksmith company's representatives in the case, an Israeli man, "looks like a terrorist." [This is of course the classic Mel Gibson defense, though I am sure there is no evidence to support any claim as to who controls all the bank locks in the world.]

The Judge was apparently slurring to the reporter in both senses of the word, but I predict he will get no credit for his administrative efficiency. He obviously ignored Jeff Lipshaw's recent advice on being careful when talking to a reporter (and thus serves as a cautionary tale for non-readers of the Legal Profession Blog), in Jeff's post on a New Orleans judge. Synthesizing these two unrelated stories, which as a law prof I am paid to do, I add that it is probably not a smart idea--ethically or otherwise--for a lawyer to go duck hunting with the Illinois Judge. At any rate, the defendant's attorney stands by his statement that the Judge had been "impaired" and everyone in the courtroom knew it.

The story was reported here this morning (without any of my inserted snarkiness or tone) by the Chicago Sun-Times, in a story by Stephanie Zimmermann called, "Mistrial in locksmith fraud case after 'attack' on judge." As a serious aside, I wonder why (if all these facts are true) the Judge had to try to place the blame of the mistrial on the lawyer's "attack" instead of simply declaring a mistrial with an apology or at least without assigning blame. The headline becomes, unfairly [though the unfairness is not Zimmermann's], one of mistrial due to "attack on judge" rather than mistrial based on "judicial impairment and injudicious statements by the Judge." I mean I know that's why the Judge spun it that way, but to me it is compounding judicial misconduct, days after the sobering effect of the incident, to blame the lawyer for objecting and treating the statements as "personal" if the conduct was made in court and to a reporter about the case. The lack of personal responsibility after, to me, is worse than the courtroom impairment, if not the outrageous ethnic slur.

In recent years, companies have been shifting much of their transactional legal work from outside law firms to in-house lawyers, and some large companies now staff transactions almost exclusively in-house. Although this transformation redefines the very nature of the business lawyer, scholars have largely ignored it. This article seeks to remedy that omission, using empirical evidence as well as economic theory to help explain why in-house lawyers are taking over, and whether they are likely to continue to take over, these functions and roles of outside lawyers. The findings are surprising, suggesting that in-house lawyers may now be performing as high quality work as outside lawyers and that the reputational value of outside lawyers may be significantly diminishing.

The quote in the headline of this post does not appear in Professor Schwarcz's paper. That is a line I used (and I lifted it from somebody else) in an interview several years ago with a reporter from Crain's Detroit Business, when I was the GC of a large division of a large company, recently recruited from partnership in a big law firm. It was precisely what you don't say if you don't want to be quoted. As you might imagine, it endeared me no end to my former partners at Prestigious But Regional Large Law Firm, who nevertheless stifled their bile for as long as we kept sending business their way.

Oh, by the way, the statement was true, and Professor Schwarcz's survey results bear that out.

Two recent postings of abtracts/articles in SSRN's Law & Soc'y: Legal Prof. (the journal edited by Bill Henderson) ought to be considered together. One post from August, here, is by researchers Todd Peppers (Roanoke, Public Affairs [left]) and Christopher Zorn (South Carolina, Poly Sci). It is "Law Clerk Influence Upon Supreme Court Decision Making," meaning U.S. Supreme Court. Its abstract is below the fold. This is the first of a series using multiple research techniques to try to tease out the clerks' decisional influences. In this phase, they focus on that part of the process where one would think their infuence would be least, votes on the merits (as opposed to, for example, taking cert or drafting opinion language). They find that at the least clerks are sounding boards and advisers on the merits. And their own ideological views exert an independent influence on the justices' voting behaviors, even controlling for the justices' own views. I add that, of course, it must be kept in mind that the hiring of the clerks is not a random and independent act--their ideologies are often taken into account both directly and through their references, feeder judges, and mentors. At any rate, the authors go so far as to estimate that the independent effect of the clerks' policy preferences is one-third of the justices' own.

The other more recent and polemical article, linked here, is by Penelope Pether (Villanova, Law [right]) and catchily entitled "Sorcerer's Apprentices: How Judicial Clerks and Staff Attorneys Impoverish U.S. Law" (abstract highlights below the fold). She makes no bones about her wary view of the trend to expand their numbers and roles, in all
sorts of federal courts, in contrast to Dr. Peppers' and Zorn's statement that their findings alone do "not suggest that law clerks are inappropriately wielding influence." Hers is a call to take back the courts.

Their common ground is that both articles find that the law clerks do influence their judges and the system even on the merits of actual decision-making and not just language of opinions and collateral matters. Pether would add that the influence is not scattered or self-correcting (it does not even out over a range of clerks and their political beliefs) but instead tends to be insensitive to the have-nots and thus affect judicial behavior and outcomes in negative and inappropriate ways. It appears that Zorn and Peppers are not ready to make that call yet, but they have staked out a methodology and agenda that may well lead in that direction--particularly since they will turn next to areas where it is already commonly believed that clerks make predictable differences, as in the certiorari process.

In sum, this is an interesting area with more work to be done, and it is useful to have two articles to mull together with their very different methodologies and styles. Abstracts to follow.

There's been flurry over at Money Law on civility, with Nancy Rapoport and Jeffrey Harrison weighing in. (I should note that it all still sounds pretty civil to me.) I think the issue is interesting and too complex to be addressed in a blog post, so I will limit myself to today's how-to from the world of professional grade incivility. I didn't catch it on Sunday, but apparently football coach Charlie Weis, the newest edition of a legend waiting to happen at Notre Dame, was the interviewee on 60 Minutes. The following is a quote from Michael McCarthy's Sports on TV column in USA Today this morning.

Weis admitted to being a "jerk" who abuses everybody, including quarterback Brady Quinn [ed. for those of you not familiar with this, Brady Quinn is an unbearably handsome 22 year-old with a certain future in the National Football League, but whose chances for a Heisman Trophy were significantly hindered by the pasting Notre Dame got earlier this year from a certain team to the east-northeast of South Bend]. He learned his in-your-face style from an even more obnoxious, sarcastic Jersey guy: Dallas Cowboys coach Bill Parcells. Weis recalls how the Tuna cut him off at the knees the first time he meekly offered advice at a coaches' meeting. "You have been in the league for five minutes. No one cares what you think, so just sit there and shut up," Parcells said.

The decision of The Board of Bar Overseers ("BBO") in the law clerk sting case is quite interesting. [Ed.: A PDF file of the final BBO decision can be downloaded from here: Download FinalDecision.pdf. Mike's earlier post is linked here.] The BBO was unanimous in recommending disbarment for Kevin Curry. He hatched the scheme and sold it to the desperate client unsolicited. He is the quintessential "guy most likely to be disbarred" that we all remember from law school. Gary Crossen, former assistant district and U.S. attorney, ethics counsel to two governors, and chair of the judicial nominating commission, drew a 7-2 vote for disbarment, with the dissenters favoring a three year suspension. Richard Donahue, former BBO chair, bar association president, and president of NIKE, got a three-year recommendation by a 7-4 vote, with the dissenters all favoring lesser suspensions of varying length. The matter now proceeds to the Supreme Judicial Court for final action.

The BBO rejected the attacks of the lawyers on the fact finding of the hearing officer as well as the suggestion that the rules did not clearly prohibit their deceitful ruse. Each accused lawyer was found to have testified with a "marked lack of candor" at the disciplinary hearing. Donahue was found to have lesser cuplability in the scheme, justifying the lesser sanction.

The BBO notes that there was intense publicity with respect to both the misconduct and the disciplinary process. This may help explain why the process seems to have worked well here. There is no better way to make self-regulation work than to expose its workings to public view. It helps, as here, to have an outstanding hearing officer and fine work by the Bar Counsel.

Note to ethics experts: the BBO squarely rejects the need or even the permissibility of expert testimony on whether a course of conduct violates ethics rules.

By far. The West Headnote, under "KeyCite 45k[61] - Reinstatement," reads as follows, in full:

Disbarred attorney who threatens to execute members of [Louisiana] Supreme Court and states that he has been told by two bishops that neither they nor the church would say that it would be morally wrong for him to summarily execute the Supreme Court is not entitled to reinstatement.

Louisiana State Bar Ass'n v. Karst, 601 So. 2d 658 (La. 1992). The opinion was authored per curiam and the seven Justicesof the Supreme Court were, as it turns out, unanimous. That is the lone headnote for a lengthy opinion (res ipsa loquitur indeed). Unlike in 1992, the state now has available the sanction of 'permanent disbarment.' OK, OK, I can see its potential application here, despite both my usual reservations...and the obvious Free Exercise Clause claim presented.

Can you top that for Ethics 101's most self-evident disciplinary decision? Add comments below if so. [Posted by Alan Childress (tip of the hat and get well soon: TEA)]

Last week, the dean's office referred a legal profession question from a Times-Picayune reporter over to me (Professor Childress is visiting at GW this semester). A federal judge in New Orleans has taken a leave of absence and is under criminal investigation in other matters. The Times-Picayune, doing an FOIA search, discovered that the judge had reported on his annual disclosure form taking hunting trips, valued at $1,000, from a company that also happened to be a defendant in a maritime injury case. The question was whether he did something wrong - and the gist of my comment was that he may not have thought he did anything wrong, or he wouldn't have reported it, and it might not have affected any decision he made, but this was precisely the reason for the rules regarding the appearance of impropriety.

I have been publicly teasing my law school classmate and Stanford professor Bob
Weisberg (left) for years now about the number of times he gets quoted in the
newspaper on all sorts of issues. I don't begrudge it; he is a really
smart guy, but one of my other blog-like duties is that I have been the
class correspondent for my law school class for going on twenty-eight
years now (there is a plaque in Dean Larry Kramer's private bathroom to prove it). Every six months the alumni relations department sends
me a book of press clippings on classmates, the great bulk of which are
Bob's quotes in newspapers ranging from the Wall Street Journal and New York Times to the San Francisco Chronicle and the Los Angeles Times. No longer will I tease. I have been dealing with reporters on and off for most of my career, but generally with the idea of not providing quotable information (never say "no comment" - just be so boring that there is nothing to write about). But from the expert perspective, there is a different sort of art to it: we are by nature contemplative and careful; that is not what the reporter wants, by and large. The reason you are on the phone, from her perspective, is to provide a sound bite that helps the story. Success is doing so without looking like an idiot in print. Congratulations, Bob, and I apologize for years of abuse!

That is what the Austin American-Statesman (reporter Chuck Lindell) charged Sunday in a lengthy and harrowing article entitled, "Sloppy lawyers failing clients on death row: For 11 years, top Texas court largely ignored shoddy work as 273 people were executed." It quoted examples from briefs that were gibberish largely lifted from clients' letters, and revealed recycled briefs from other habeas petitions (in state court) that did not match the facts or legal issues. Several bad lawyer names kept popping up time and again, all on the government dole. The article lays the blame on lax oversight by the Texas Court of Criminal Appeals. [That court, the state's highest on matters of criminal jurisdiction, was for years--I'm reminded by my coauthor on appellate review Martha S. Davis of TSU--called the 'Texas Court of Harmess Error.'] At any rate, the newspaper gives details and specific illustrations that should be eye-popping even to seasoned appellate lawyers and courtwatchers who know there was no perfect trial below and there is no perfect lawyer; this goes way under that mark.

The Austin article was reported on here in the How Appealing blog, which helpfully links related articles in that newspaper about the state bar discipline process as well as the state Supreme Court's anticipated moves toward raising standards. The collection is first in a series by the paper called 'Writs gone wrong.' [Alan Childress]

Imagine you are the chair of a Faculty Appointments Committee some time back in the mid-1970s, and this is the C.V. that comes across your desk: Harvard College, magna cum laude, Harvard Law School (winner of the Fay Diploma for graduating first in the class and Articles Editor of the Law Review), clerkships with Irving R. Kaufman on the Second Circuit and Supreme Court Justice William O. Douglas, then two years as Counsel to the Watergate Special Prosecutor, Archibald Cox. I suppose nowadays you'd want to see an article or two published as well.

This, of course, was the early resume of Peter Kreindler, the current Senior Vice President & General Counsel of Honeywell International, who hired me (a long time ago when Honeywell was AlliedSignal) and was my boss for five years. From the Watergate Special Prosecutor's Office, Peter went on to partnerships at Hughes Hubbard & Reed and Arnold & Porter before being hired at AlliedSignal by one of the great and charismatic business leaders of the last thirty years, Larry Bossidy.

I thought of Peter when I saw Brian Leiter's note (and Avery Katz's update) on one of every twelve Yale Law School alumni being a law professor. It made me wonder about all of the alums of the law-professor-producing schools who, like Peter, it seems to me, were probably minimally qualified to be law professors (note the sarcasm, please) but chose other careers. How many are there? Of the law review editors/Order of the Coif types at Harvard, Stanford, Chicago, Yale, etc., what percentage go on to be law professors? Of those who do not, are there particular kinds of practice to whom they tend to gravitate? Do they ever have second thoughts about the road not taken? Do they stay in touch with issues on the academic side of the profession? How do they see the subject of curricular reform of the kind discussed over at Money Law?

By the way, were it not for the fact that Peter is a great human being, having him as my direct supervisor for five years would have been (well, actually it was anyway) the most intimidating experience of my life. I have never met anybody in private practice, corporate life, or the academy, whose CPU ran faster than Peter's. The sheer speed at which he could deconstruct and reconstruct a problem was staggering. Peter's law department was also a school of sorts for general counsels: his former deputies moved on to be the top lawyers at Perkin-Elmer, FMC, American Standard, Medtronic, Visteon, Raytheon and others.

Posted by Alan ChildressHere is the ABA Journal's on-line report Friday of a Sixth Circuit decision Oct. 18 to disqualify a law firm for the successive conflict of interest that arose when one of its opponent's lawyers switched jobs laterally and joined the firm. No screening was permitted to stop the lawyer's own obvious conflict [under Michigan's version of MR 1.9(a)] from disqualifying vicariously his new colleagues. Some are arguing that the Sixth Circuit case is wrong because it failed to see that a Comment to 1.9(b) may permit screening or avoid firm-wide disqualification. But BU's Nancy Moore (also Chief Reporter for the 'Ethics 2000' revisions), quoted in the story, is surely correct that those Comments refer to what is now 1.9(c) and just did not get its reference to the right rule updated as the revision was implemented. [Rule 1.9(c) is about ending the imputed conflict once the tainted lawyer leaves his or her new firm, e.g., by firing.] The Sixth Circuit may be wrong, but it isn't for the reason other people are saying in the story. (I hope to give a follow-up assessment next week of why it still may be wrong, but invite your comments.)

Meanwhile, such a "migratory attorney" situation is exactly the subject we are covering right now in my PR class, and the case and controversy at least illustrate the point I made in the last class--no one gets this area at all. Here we see so-called experts (not Moore, mind you, who seems to calmly correct that specific misciting) screaming about how the Sixth Circuit is off on the 'wrong' rule when to me it is clear that, in pertinent fact, the conflicted attorney did not exit his new firm.